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Supreme Court Muslim Ban Order Will Lead to Discrimination

The Supreme Court’s order today lifting parts of the injunction against the Muslim Travel Ban is already creating confusion about who is covered, what the immediate impact will be, and about what the future of Muslim immigration to the United States is.

The Court’s order this morning continues to block most of the Travel Ban imposed in a presidential executive order, but allows the Trump Administration to halt the entry of people from six Muslim-majority countries if they don’t have “any bona fide relationship with a person or entity in the United States.” The Court offers a short discussion of what a “bona fide relationship” is at the end of the order, but the explanation is itself confusing. The Court says that for “individuals, a close familial relationship is required. A foreign national who wishes to enter the United States to live with or visit a family member, like Doe’s wife or Dr. Elshikh’s mother-in-law, clearly has such a relationship.” Of course a visit to a wife is a visit to a close relative. However, what about a visit to a sister or a cousin, or the partner in a civil union? How clear is it from the language of the Court that these are sufficiently close familial relations? And if a mother-in-law is a close relation, what about a grandson or brother-in-law? This confusion about relationships will be a boon to the Trump Administration. 

Those with a bona fide relationship with a U.S. “entity” may also avoid the Travel Ban. The Court says:

“As for entities, the relationship must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading EO–2. The students from the designated countries who have been admitted to the University of Hawaii have such a relationship with an American entity. So too would a worker who accepted an offer of employment from an American company or a lecturer invited to address an American audience. Not so someone who enters into a relationship simply to avoid [the Travel Ban]: For example, a nonprofit group devoted to immigration issues may not contact foreign nationals from the designated countries, add them to client lists, and then secure their entry by claiming injury from their exclusion.”

This assumes that the Trump Administration is going to be fair in deciding whether a relationship between the person coming to the U.S. and the American “entity” was formed for the “purpose of evading” the Muslim Ban. If a Muslim speaker from Iran is coming to give a lecture at an American university, it will now be up to the State Department and Department of Homeland Security to decide whether the speaker really accepted the invitation so he could get into the U.S. to see the sights and therefor be banned. Given the current mess at those two departments, do we really believe that they can be trusted to act without prejudice?

The Supreme Court no doubt intended to walk the fine line between freedom and security with this order. In ordinary times, we could expect the president to respect that fine line. President Trump can be expected to drive a Mack Truck through it. Over the next few months we can expect to see thousands of Muslims from the six affected countries wrongfully denied admission and the courts will then fill up with lawsuits seeking to overturn those denials. This order, as well-intentioned as it was, opens the door to the exercise of rampant discrimination by the bigots now running our immigration sstem. 

Pat Young is an attorney at CARECEN on Long Island.

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